Bombay High Court

Firoza Fazal Shaikh vs The State Of Maharashtra on 22 April, 2016

Bench: I.K. Jain

                                            1
                                                               916 CRI.APPLICATION.1398.16.odt


                  THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           BENCH AT AURANGABAD.




                                                                              
                         APPELLATE SIDE JURISDICTION




                                                      
                      CRIMINAL APPLICATION NO. 1398 OF 2016




                                                     
    Firoza Fazal Shaikh,
    Age: 34 years, Occu: Household,
    R/o. Mulla Galli, Harsool,
    Aurangabad.                                            ... APPLICANT




                                          
              V E R S U S        
    The State of Maharashtra,
    At the instance of Begumpura
                                
    Police Station, Dist. Aurangabad.                      ... RESPONDENT


                                            ...
      

    Mr.   Rajendra   S.   Deshmukh,   Advocate   i/b   Mr.  Abhaysinh   K.   Bhosale,
    Advocate for Applicant.
   



     

    Mr. S. D. Ghayal, APP for Respondent / State.
     

    Mr. S. S. Ladda, Advocate for Intervenor / Complainant.
                                            ...





                                              CORAM  : INDIRA K. JAIN, J.

                                              DATE      : 22nd April, 2016.





    ORAL JUDGMENT:   
     
    .                 Rule.  Rule made returnable forthwith.  Heard finally with

the consent of the learned counsel for parties.

916 CRI.APPLICATION.1398.16.odt

2 By this application, Applicant / original Accused

challenges the order dated 25th February, 2016 passed by the learned

Additional Sessions Judge, Aurangabad below Exhibit 1 in Sessions

Case No.300 of 2013.

3 Heard at length Mr. R. S. Deshmukh, learned counsel for

Applicant and Mr. S. D. Ghayal, learned APP for State.

Facts giving rise to present application may be stated in

nutshell as under:

i. PSO Begumpura Police Station, Aurangabad filed

charge-sheet in Crime No.I-34 of 2013 against the

Applicant for the offences punishable under

Sections 302 of 201 of the Indian penal Code.

Applicant is an under trial prisoner. Sessions Case

No.300 of 2013 arising out of said crime is pending

before the learned Additional Sessions Judge,

Aurangabad.

ii. On 9th May, 2013 Accused was arrested. He

moved an application Exhibit 7 under Section 330

916 CRI.APPLICATION.1398.16.odt

of the Code of Criminal Procedure for his release

on bail. It was rejected on 29th May, 2014. The

order of rejection of application was challenged

before this Court in Criminal Application No.6050

of 2014. By the order dated 19th December, 2012

(Coram : T. V. Nalawade, J.), the order passed

below Exhibit 7 was set aside and matter was

remanded to Trial Court for following the procedure

laid down in Chapter XXV of the Code of Criminal

Procedure. On remand Trial Court conducted

enquiry afresh and vide impugned order rejected

the plea raised by Accused that he is a person of

unsound mind and consequently incapable of

making his defence. Being aggrieved Applicant

has challenged the said order in present

application.

5 In his extensive arguments learned counsel for Applicant

vehemently contended that Applicant was examined by experts at

Mental Hospital, Yerwada. Reports dated 19th June, 2015, 25th July,

2015 and 27th August, 2015 persistently suggest that Applicant is of

916 CRI.APPLICATION.1398.16.odt

unsound mind and needs long terms indoor treatment. It is submitted

that report dated 27th August, 2015 also indicates that patient would

also require family support and such environment which would be

helpful for his speedy recovery. Learned counsel submits that on 4th

February, 2016 Mental Hospital, Pune surprisingly issued a report

showing that Accused is fit for trial and based on this report Trial

Court came to the conclusion that Accused was not of unsound mind

and not incapable to make his defence. Learned counsel submitted

that number of reports in favour of Applicant would speak otherwise

and the impugned order therefore needs to be set aside.

6 Per contra learned APP strongly supports the order

passed by the Trial Court under Section 329 of the Code of Criminal

Procedure. Learned APP submitted that report Exhibit 54 issued by

Dr. Donglikar clearly shows that Accused is fit for trial and so Trial

Court has rightly negatived the plea raised by Applicant.

7 Mr. S. S. Ladda, learned counsel for Complainant is also

heard. Learned counsel submitted that Accused is involved in series

of offences and he never raised plea of unsoundness of mind in either

of the cases. Learned counsel for Complainant contended that

916 CRI.APPLICATION.1398.16.odt

number of documents were available on record before the Trial Court

which would show that Accused was not a person of unsound mind

but the plea of unsoundness of mind has been purposely raised to

frustrate the trial and to anyhow get released on bail since all the

efforts of Accused to get himself enlarged on bail have failed.

Learned counsel submits that Trial Court has rightly negatived the

plea of unsoundness of mind and no interference is warranted in this

application.

8 On perusal of report dated 19th June, 2015 submitted by

Superintendent Regional Mental Hospital, Yerwada, Pune to the

Sessions Court, Aurangabad it can be seen that mental status

examination of patient was conducted and doctor opined that patient

was showing some improvement in psychiatric symptoms and he

needs further long term indoor management. Another report dated

23rd July, 2015 is on the same line. In third report dated 27 th August,

2015 impression recorded by doctor is "at present patient is missing

his relatives and feeling lonely. He is on above said medicines. He

will require long term treatment as well as family support/environment

would be helpful for his speech recovery."

916 CRI.APPLICATION.1398.16.odt

9 Next report is dated 16th November, 2015. It shows that

patient showing improvement needs long term management.

Presently he is not fit for trial. One more report dated 19 th December,

2015 is by Visitors Committee consisting of Chief Judicial Magistrate,

Pune, Superintendent Regional Mental Hospital, Yerwada, Pune and

Deputy Superintendent Regional Mental Hospital, Pune. This report

indicates that patient was of unsound mind and unfit for trial.

It is also evident that after the matter was remanded

prosecution moved an application calling an expert as a witness. Trial

Court issued summons to Medical Superintendent, Regional Mental

Hospital, Yerwada, Pune and examined Dr. Bhalchandra s/o.

Manikrao Donglikar as Court Witness No.1. In his evidence Dr.

Donglikar stated that Dr. Gosavi was the treating doctor of Accused.

He was regularly attending the patient. Dr. Gosavi was not examined

in the course of enquiry.

11 Needless to state that enquiry under Section 329 of the

Code of Criminal Procedure is treated as part of trial. Section 329 of

the Code of Criminal Procedure provides that when Trial Court is of

the view that Accused is a man of unsound mind and consequently

916 CRI.APPLICATION.1398.16.odt

incapable of making his defence, after considering the medical report

in this regard, he should postpone further proceeding of case and trial

will start as soon as he is found to be capable of making his defence.

It is mandatory that when plea of unsoundness of mind is raised

before the Court it shall try the fact of unsoundness of mind and

incapacity of Accused at the first instance.

12 Section 329 of the Code of Criminal Procedure

contemplates two stages of procedure. First stage lays down that it

must appear to the Judge that Accused placed on trial was of

unsound mind and incapable of making his defence. Next stage that

has to follow when it appears to Judge that Accused was of unsound

mind and consequently incapable of making his defence, is that the

fact of such unsoundness of mind and incapacity has to be enquired

into on the basis of material placed before the Court. The decision in

this regard cannot be based merely on the information received from

doctors, but it must be based on evidence and the entire material

brought forth before the Court.

13 In the present case it is apparent from the impugned order

that Trial Court has not considered number of reports by experts,

916 CRI.APPLICATION.1398.16.odt

voluminous documents containing 168 pages produced by

Dr.Donglikar and did not examine competent witnesses in course of

enquiry. In this premise enquiry cannot be said to be complete in all

respects under Section 329 of the Code of Criminal Procedure and

the order passed ignoring the relevant material on record is

unsustainable in law. Hence the following order -

                               ig      O R D E R
                             
            I.     Criminal Application No.1398 of 2016 is allowed.



            II.    Impugned order dated 25th February, 2016 passed

below Exhibit 1 by the learned Additional Sessions

Judge, Aurangabad in Sessions Case No.300 of

2013, is set aside.

III. Matter is remanded to the Trial Court with a

direction to enquire into the plea of unsoundness of

mind and consequently his incapacity to make his

defence, as raised by the Accused, afresh in

accordance with the law.

916 CRI.APPLICATION.1398.16.odt

IV. While recording finding on the plea raised by

Accused Trial Court is expected to consider the

entire material and evidence on record.